COURT FILE NO.: CV-17-3440-00
DATE: 2021 11 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bruce Moffitt by his Litigation Guardian, Catherine Moffitt, Catherine Moffitt, Ella Bakker-Moffitt and Lucas Porter-Bakker
Plaintiffs
- and -
TD Canada Trust, Ferdinand Pangan and Jason Green
Defendants
COUNSEL:
C. Morrison and S. Pickering for the Plaintiffs
D. Zuber and A. Presse for the Defendant TD Canada Trust
No one appearing for the other Defendants
HEARD: In writing
ENDORSEMENT ON COSTS
LEMAY J
[1] After lengthy litigation culminating in a three-day summary judgment motion, I granted summary judgment in favour of the Defendant, TD and dismissed the Plaintiffs’ action against TD (see 2021 ONSC 6133).
[2] I have now received costs submissions from the parties and must now fix the costs for this litigation.
Positions of the Parties and the Law
[3] TD, as the successful litigant, seeks costs on a partial indemnity scale in the amount of $231,077.50 inclusive of HST and disbursements. These costs are sought on the following grounds:
a) TD was wholly successful on the motion for summary judgment.
b) The Plaintiffs delayed in moving this matter forward and, as a result, significant additional costs were incurred.
c) The case as a whole was complex, justifying the costs sought by TD.
[4] Although TD is not seeking “solicitor and client costs”, or substantial indemnity costs, TD is of the view that there are “good arguments to be made” that substantial indemnity costs should be ordered in this case. I disagree. I see no basis on the facts of this case that would justify an order of anything other than partial indemnity costs. For the circumstances in which elevated costs would be awarded, see Davies v. Clarington 2009 ONCA 722 (2009) 100 O.R. (3d) 66 at para 40.
[5] The Plaintiffs argue that the costs sought by TD should be significantly reduced or eliminated on three separate grounds:
a) The fact that the Plaintiff is subsisting on social assistance payments, and that a significant costs burden should not be put on him or the litigation guardian.
b) This was a novel case and there was no precedent for the claim that was being made.
c) The costs being claimed by TD are excessive for the work that was done.
[6] I will set out the applicable principles and then consider the issues raised by the parties’ submissions.
The Applicable Law
[7] Neither party has indicated that there were any Rule 49 offers in this case. As a result, the principles that I must adopt in setting costs are found in Rule 57.01 of the Rules of Civil Procedure. For the purposes of this motion, the most significant of those principles are:
a) Who was the successful party?
b) The complexity of the proceeding and the importance of the issues.
c) The conduct of the parties.
[8] The Plaintiffs also referred me to Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 ONCA 14579, 71 O.R. (3d) 291. This decision sets out a number of key principles that apply in costs decisions, including:
a) The key consideration in fixing the costs payable is whether the fees payable are a fair and reasonable amount for the unsuccessful party to pay. See also Brady v. Lamb 2004 CarswellOnt 2535 at para 29.
b) In deciding what is a fair and reasonable amount for the unsuccessful party to pay, the expectations of the parties is a relevant factor for the Court to consider.
[9] In this case, there is no dispute over who was the successful party on the summary judgment motion. TD was the successful party and, in the normal course, would be entitled to its partial indemnity costs for this action.
Issues
[10] The submissions of the parties and the applicable principles from Rule 57.01 raise the following issues:
a) Should costs be reduced because of the Plaintiff’s personal circumstances?
b) Should costs be reduced because the issue that was presented is a novel issue?
c) Are the costs claimed by TD excessive?
d) Should costs be increased as a result of the delay on the part of the Plaintiff?
[11] I will deal with each issue in turn.
Issue #1 – Should Costs be Reduced Because of the Plaintiff’s Personal Circumstances?
[12] Counsel for the Plaintiffs points out that Mr. Moffitt, the principal Plaintiff, suffered serious injuries as a result of the assault. At this point, Mr. Moffitt is subsisting on social assistance and other government payments. Counsel therefore argues that a reduction and perhaps a significant one should be made to the costs awarded to TD.
[13] I accept that Mr. Moffitt’s personal financial circumstances are quite dire. However, his sister Catherine Moffitt is his litigation guardian. Under Rule 7.02(2)(h), Ms. Moffitt is also personally liable to pay the costs of this litigation since it was unsuccessful. There is no information about Ms. Moffitt’s personal circumstances in the materials that were filed before me.
[14] I acknowledge the Plaintiffs’ submission that asking Ms. Moffitt to pay such a large costs award is a significant burden to place on her. However, she accepted the responsibilities of being Mr. Moffitt’s litigation guardian in this case and must bear that responsibility given that the case was unsuccessful.
[15] However, on the facts of this case, I am of the view that some moderation of the costs otherwise payable to TD should be provided to account for the fact that the Plaintiff is of very limited means as a result of the incident. That moderation must be balanced against the other factors that I will discuss below.
Issue #2 – Does the Novelty of This Case Justify a Reduction in Costs?
[16] Counsel for the Plaintiff argues that the costs in this case should be reduced, and perhaps significantly, because this is a novel issue of first impression. In support of this position, counsel directed my attention to the decision in Baldwin v. Dubney 2006 ONSC 33317, 2006 CarswellOnt 5899. In that decision, Spence J. stated (at paras 19-22):
19 The rationale for the "novel issue" policy, as suggested in Metropolitan Toronto Civic Employees' Union v. Toronto (Metropolitan)(1988), 1988 ONSC 4692, 65 O.R. (2d) 47 (Ont. Div. Ct.) at page 62 is that, in novel cases, the plaintiff is "proceeding along a path which is not encumbered by a precedent which would warn him not to proceed further". For an issue to be novel in a way that is legally significant, it might be argued that the issue should not only be one which has not been decided in the factual context in which it now arises in the instant case, but is also one on which the law in the decided cases does to provide adequate guidance as to its resolution (whether that is so because of conflicts among the cases or a limitation on the appropriate scope of their application or some other factor). Such an issue could properly be regarded as "open".
20 However, if the law provides adequate guidance for the resolution of the issue, then even though the issue might well not have been previously decided, it would not properly be regarded as "open".
21 Now, the question is how to decide between these two conceptions of the criterion for a novel issue — i.e., that it has not been decided in the instant context, on the one hand, versus, that it is left open by the decided law, on the other hand. To do so, it is necessary to consider what the purpose of this enquiry is. In the costs context, the purpose of the enquiry must be to decide whether there is good reason for an unsuccessful party to be relieved from the costs rule.
22 If the unsuccessful party says that he or she should be relieved from the costs rule because a novel issue was raised, it is not clear why that should be a relevant reason unless that element of novelty goes to the reasonable expectations of the party about the litigation. If the issue is truly open in the sense considered above, the litigant could reasonably say that he or she had no proper reason to expect to fail. But if all that the litigant can say is that there was no decided case directly on the point, that begs the question about reasonable expectations. The litigant in that situation is vulnerable to the response: although there are no decided cases directly on point, the law is clearly against your case, so you should reasonably expect to lose. On this basis, the test for a novel issue based on whether the issue is an open one serves the purpose that would seem fairly to be intended to be achieved by the exception for novel issues in respect of costs awards.
[17] The principles in this case were adopted by the Court of Appeal in Das v. George Weston Ltd. 2018 ONCA 1053 at para. 244. While Das was a class action case, the principles enunciated in Baldwin have general application.
[18] I accept that there were no cases directly on point, and no cases that even dealt with the security measures at a business that provided an after-hours service. As a result, this was a case of first impression. However, the question remains as to whether the law provided adequate guidance as to the likely resolution of this case in spite of the fact that there were no prior cases directly on point. In my view, it did.
[19] The starting point for my conclusion is the fact that Mr. Moffitt initiated the assault that resulted in Mr. Moffitt’s injuries. This is a fact that was, in my view, uncontroverted by any evidence in the material before me (see paragraphs 10 and 283 of my reasons for judgment). However, the Plaintiffs’ expert reports and the Affidavit from Mr. Kahler on the summary judgment motion all took the position that it was Mr. Pangan who had initiated the assault. This position was demonstrably incorrect.
[20] This attempt by the Plaintiffs to portray the facts as different from how they clearly appear on the videotape was a key reason for this litigation. Once you accept the fact that Mr. Moffitt initiated the physical conflict, it becomes clear that the assault on Mr. Moffit is, as I noted at paragraph 284 of my reasons, “the type of crime that is very difficult to foresee and very difficult to stop in advance.” In other words, even though it was a case of first impression, on the facts of this case, it should have been clear that the Plaintiffs’ chances of success were limited.
[21] This is a case that had not been decided, in the words of Spence J., “in the instant context”. The resolution of the case, however, flowed naturally and logically from the application of basic principles of negligence law. In short, this is not a case where there should be any significant deduction in the costs on account of the novelty of the issues and I decline to apply such a deduction.
Issue #3 – Are the Costs Claimed by TD Excessive?
[22] Answering this question requires a consideration of the complexity of the litigation, the issues in dispute and the specifics of TD’s bill of costs.
[23] I start with the complexity of the litigation. The underlying issue of whether TD breached a duty of care to Mr. Moffitt is relatively straightforward. However, the case was made more complex by two factors. First, assessing the duty of care in this case required an analysis of both internal policies and external circumstances. Second, as I have noted at paragraph 19, the Plaintiffs incorrectly advanced the position that the assault was started by Mr. Pangan, which made the case more complex. The Plaintiffs’ experts also advanced this position. In short, a significant portion of the costs incurred by TD were incurred because of the nature of the case and the way it was presented.
[24] This brings me to the specifics of TD’s bill of costs. In this regard, I agree with Plaintiff’s counsel that some of the items on that bill are unjustifiable. Specifically, I note as follows:
a) A Wagg motion was brought by TD. One of the counsel spent 18.9 hours on this motion. Assuming an eight-hour billing day, this means that counsel spent two and a half days on this motion. Wagg motions are straightforward matters that require a standard motion record to be prepared and correspondence to be received from the Attorney General. This is something that should take no more than five or six hours, especially since experienced litigation counsel should have easy access to precedent materials for a motion of this nature.
b) Counsel for TD spent 1.6 hours on a motion to amend the Statement of Claim to name Mr. Green rather than John Doe. Given that this motion was uncontroversial and consented to by TD, I fail to see how this much time was justifiable.
c) Counsel for TD spent 14.4 hours, or approximately two working days, on a motion for a change of venue. This motion was unsuccessful and so costs should not be payable. More importantly, however, the materials that were filed on this motion (which was heard in writing) do not justify the time that was spent. Again, this is a relatively routine motion and experienced litigation counsel should have easy access to precedent materials.
d) There is a disbursement for 30 Forensics Engineering. No report from this company was filed in the summary judgment motion materials. As a result, I am not prepared to permit this disbursement.
[25] This then brings me to the costs that are sought for the summary judgment motion as a whole. The time spent by all of TD’s lawyers and law clerks involved in this file on the summary judgment motion preparation and attendance is just short of 500 hours. There are two problems with this claim:
a) There is no detailed bill of costs that is included, so it is difficult to assess whether there is duplication in the time spent or whether the time is excessive or unreasonable.
b) Assuming an eight hour day, there is approximately twelve (12) weeks of time that was spent on this summary judgment motion. That amount seems somewhat excessive in the circumstances.
[26] However, my concerns about the excessive amount of time that may have been spent on the summary judgment motion itself must be balanced against the fact that this was a three day summary judgment motion with five experts. I also note that the Plaintiffs filed a five-volume responding record that contained dense judicial decisions, news articles and other voluminous attachments. TD’s counsel would have been required to review all of this documentation.
[27] I am also alive to the fact that the Plaintiffs' approach to this litigation tended to lengthen it, and I now turn to that issue.
Issue #4 – Plaintiffs’ Delay
[28] TD’s costs submissions set out the history of delay in this case. I also note that, in numerous other decisions, I have found that the source of the delays in this case is the Plaintiff. See, for example, 2019 ONSC 280 and 2019 ONSC 2548. In those decisions, as I did in other endorsements, I expressed significant concerns about both the delays in this case and the Plaintiffs’ tendency to relitigate issues that had already been decided.
[29] In terms of re-litigating issues, one matter in particular stands out. It is the subject of the scope of discovery and production. Seppi J. made a decision in June of 2018 that applied principles of proportionality to this case. The Plaintiffs unsuccessfully appealed this decision to the Divisional Court. That was their right.
[30] However, even after losing their appeal at the Divisional Court, the Plaintiffs re-argued the principles of proportionality before me in an attempt to have the decision of Seppi J. nullified by having me make a different order. I rejected these arguments. Pursuing these arguments after they had been adjudicated added to the time and expense required to litigate this matter, and TD is entitled to be compensated for that additional time and expense.
[31] Then, there is the fact that the Plaintiffs significantly delayed in providing their expert report. I had significant concerns in the manner in which the Plaintiffs ended up providing three expert reports. Those concerns are discussed at paragraph 65 of my reasons on the motion. In short, however, the Plaintiffs’ conduct in respect of the retaining and serving of expert reports both lengthened the timetable in this matter and made the hearing of the motion more complicated. Again, TD is entitled to be compensated for this additional expense.
Conclusion
[32] The fixing of costs is not just an arithmetic exercise. It requires a consideration of the entire litigation. In this case, I must consider both the excessive time spent by TD’s counsel and the fact that Mr. Moffitt, the principal Plaintiff, is impecunious. Those facts have to be balanced against the fact that the Plaintiffs' case was not strong and the manner in which the Plaintiffs conducted the litigation.
[33] When I consider all of these factors, I am of the view that a costs award in the sum of $130,000.00 inclusive of HST and disbursements is appropriate. In arriving at that number, I make the following observations:
a) Other than the 30 Forensics report, there is nothing in the disbursements list that is unreasonable. As a result, the disbursements alone amount to $34,671.12. All of these are reasonable disbursements.
b) There were three days of hearing on the merits of the summary judgment motion, which consumed a significant amount of time for TD’s counsel.
c) The materials filed by the Plaintiff were voluminous and required a detailed review.
d) The Plaintiff conducted portions of this litigation in a manner that resulted in significant delay and significant additional expenditures. In particular, the additional work around expert reports was both unnecessary and time-consuming.
e) However, there is clearly duplication and excessive time in the dockets of the Defendant TD.
f) There should also be some accounting for the personal circumstances of the principal Plaintiff, Mr. Bruce Moffitt.
[34] As a result, I order that costs are to be paid by the Plaintiffs to the Defendant TD in the sum of $130,000.00 inclusive of HST and disbursements. These costs are to be paid within thirty (30) days of the release of these reasons. The Plaintiffs, including the litigation guardian, are jointly and severally liable for these costs in accordance with the Rules of Civil Procedure.
LEMAY J
Released: November 30, 2021
COURT FILE NO.: CV-17-3440-00
DATE: 2021 11 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bruce Moffitt by his Litigation Guardian, Catherine Moffitt, Catherine Moffitt, Ella Bakker-Moffitt and Lucas Porter-Bakker
Plaintiffs
- and -
TD Canada Trust, Ferdinand Pangan and Jason Green
Defendants
ENDORSEMENT ON COSTS
LEMAY J
Released: November 30, 2021